Tag Archives: Tort

The New York Times had a great article on the consequences of tort reform on victims of corporate negligence. The article uses the example of Connie Spears. Spears arrived at a Christus Santa Rosa hospital emergency room in 2010 with severe leg pain. She had a history of blood clots. Doctors sent her home with a far less serious misdiagnosis. "Days later, swollen and delusional, Ms. Spears was taken by ambulance to another hospital where doctors found a severe clot and extensive tissue damage. With her life on the line, they amputated both of her legs above the knee."

Texas lawmakers placed onerous burdens on victims of negligence by 1) arbitrarily limiting noneconomic damages (including pain and suffering) that a plaintiff could receive for medical malpractice at $250,000; 2) setting a “willful and wanton” negligence standard — interpreted as intentionally harming the patient — for emergency care; 3) requiring plaintiffs to find a practicing or teaching physician in the same specialty as the defendant to serve as an expert witness and to demonstrate evidence of negligence before discovery has taken place; and 4) dismissing the case if plaintiffs fail to produce detailed expert reports within 120 days of filing their cases.

These burdensome laws obstructed Spears’ ability to find a malpractice lawyer and forced a judge to order her to pay thousands of dollars to cover defendants’ legal bills. The new expert-witness rules are sometimes impossible to comply within the time allotted despite the obvious negligence in the care provided to Spears.

Researchers at Johns Hopkins say that despite efforts to improve surgical safety, 4,044 so-called "never events," including leaving a foreign object such as a sponge inside a patient’s body, occur in the U.S. each year. Laura Landro reports on The News Hub.

They are known as "never events"—the kind of mistake that should never happen in medicine, like operating on the wrong patient or sewing someone up with a sponge still inside—yet new research suggests that they happen with alarming frequency.

Surgeons make such mistakes more than 4,000 times a year in the U.S., according to a study led by Johns Hopkins University School of Medicine, published online in the journal Surgery. The study, using data in the National Practitioner Data Bank, a federal repository of medical-malpractice judgments and out-of-court settlements, looked at cases involving leaving an object inside a patient, wrong-site surgeries, wrong procedures and wrong-patient surgeries.

CNN reported on the Top 10 Medical Mistakes. "Medical errors kill more than a quarter million people every year in the United States and injure millions. Add them all up and "you have probably the third leading cause of death" in the country, says Dr. Peter Pronovost, an anesthesiologist and critical care physician at Johns Hopkins Hospital."

The harm is often avoidable. Surgeons make ‘body-part mix-ups’. Here’s CNN’s list of 10 shocking medical mistakes and ways to not become a victim:

5. Mistake: The ER waiting game• Cause: Emergency rooms get backed up when overcrowded hospitals don’t have enough beds.
• Consequences: Patients get sicker while waiting for care.
• Prevention: Doctors listen to other doctors, so on your way to the hospital call your physician and ask them to call the emergency room.
• Example case: Malyia Jeffers

6. Mistake: Air bubbles in blood• Cause: The hole in a patient’s chest isn’t sealed airtight after a chest tube is removed.
• Consequences: Air bubbles get sucked into the wound and cut off blood supply to the patient’s lungs, heart, kidneys and brain. Left uncorrected the patient dies.
• Prevention: If you have a central line tube in you, ask how you should be positioned when the line comes out.
• Example case: Blake Fought

7. Mistake: Operating on the wrong body part• Cause: A patient’s chart is incorrect, or a surgeon misreads it, or surgical draping obscures marks that denote the correct side of the operation.
• Consequences: The surgeon cuts into the wrong side of a patient’s body.
• Prevention: Just before surgery, make sure you reaffirm with the nurse and the surgeon the correct body part and side of your operation.
• Example case: Jesse Matlock

8. Mistake: Infection infestation• Cause: Doctors and nurses don’t wash their hands.
• Consequences: Patients can die from infections spread by hospital workers.
• Prevention: It may be uncomfortable to ask, but make sure doctors and nurses wash their hands before they touch you, even if they’re wearing gloves.
• Example case: Josh Nahum

9. Mistake: Lookalike tubes• Cause: A chest tube and a feeding tube can look a lot alike.
• Consequences: Medicine meant for the stomach goes into the chest.
• Prevention: When you have tubes in you, ask the staff to trace every tube back to the point of origin so the right medicine goes to the right place.
• Example case: Alicia Coleman

10. Mistake: Waking up during surgery• Cause: An under-dose of anesthesia.
• Consequences: The brain stays awake while the muscles stay frozen. Most patients aren’t in any pain but some feel every poke, prod and cut.
• Prevention: When you schedule surgery, ask your surgeon if you need to be put asleep or if a local anesthetic might work just as well.
• Example case: Erin Cook

The Consumer Voice published an interesting response to a recent study by AON Risk Solutions which argued that nursing homes are facing increased liability costs at the same time their revenue is being strained by funding cuts, particularly from a Medicare reimbursement reduction that went into effect October 1, 2011. The industry hacks then said tort reform and pre-dispute mandatory arbitration agreements will somehow decrease health care costs. As the Consumer Voice reports:

"Here’s what they do not tell you:

 This report is published with the American Health Care Association – the largest trade association representing the interests of many nursing homes.

 For the second time in FY 2012, publicly traded nursing home companies reported “profits that exceed expectationsi,” “surging operational incomeii” and “performance that outran fairly aggressive projections.”

 Medicare reimbursement rates for skilled nursing facilities are 3.4% higher in FY 2012 than in FY 2010 – even with the reduction effective October 1st, 2011.

 Seven states were chosen by Aon for the report. Why were these states chosen and not others? Does the report only examine states with the results Aon wants? How can the report be a “national study” if the information comes from just 7 out of 50 states?

 The report says it distributed a request for data to for-profit and non-profit providers. It does not state that the request for data was sent to all providers in the country or even all providers in the seven states highlighted in the publication. Did only certain providers receive the data request? Were those providers cherry-picked?

 The report fails to identify the providers from which claim data was collected and how many providers were included from each state. Consequently, data from a state could conceivably be drawn from a single provider with a poor history of care and therefore not be representative of the state as a whole.

 According to the report, approximately 19,500 non-zero claims were aggregated. However, the report’s definition of a claim is any demand. A demand is not always a formal lawsuit and claims of all kinds, including lawsuits, may be dropped. How many of the 19,500 claims were actual lawsuits that were settled or went to trial?

 The report’s own data contradicts the contention that tort reform has reduced costs. o West Virginia enacted tort reform in 2003. However, the loss rate has shown “a strong upward trend” (page 30). o Georgia enacted tort reform in 2005, yet both the frequency of claims and the loss rate has increased (page 18) since that year.

 According to the report, the data comes solely from 8 of the 10 largest providers in the country. However, the size of providers varies across the U.S., and the average size nursing home is only about 108 beds.v How can the report claim to represent the “perspective of all long term care providers” when it does not include data from small and medium-sized providers?

 “Claims” include very serious harm and injury to residents, and even cases of resident death. Examples include pressure ulcers down to the bone, malnutrition, dehydration, sexual assault, broken bones, falls, and severe infections.

 Tort reform is touted as a way to reduce healthcare costs. However, medical malpractice litigation is not responsible for rising healthcare costs: between 2000 and 2011, the value of medical malpractice payments fell 11.9 percent while healthcare spending nearly doubled, increasing 96.7 percent. Furthermore, in Texas – the state the report cites as “the example for effective tort reform” – researchers have found that tort limitations have not saved money.

 Arbitration completely strips the resident or the resident’s family member of their constitutional right to a trial by jury. Arbitrators are private individuals who may be chosen by the nursing home – not publicly elected or appointed officials like judges. Arbitration can be very costly and is usually far more expensive than court. Residents and families not only have to hire a lawyer, they generally have to pay a part of the arbitrator’s fee – which is like having to pay the judge. And once a decision is issued, consumers typically cannot appeal it like they can in the court system."

Please take a look at the letter below written by Dr. Jack William Erter III, M.D that ran in the Sumter Daily Item in response to the ridiculous anti-lawyer rhetoric tossed about in the McElveen-Barwick race for Senate 35.

"I feel compelled to weigh in on recent letters from different readers referencing that "(l)awyers play big part in downfall of America" (10/24/2012) and, on a related note, that "(m)alpractice insurance (is) a big contributor to consumer insurance woes." (10/23/2012) The latter of these letters states that "we don’t need any more trial lawyers in the Statehouse." As a Sumter native and a physician born, raised and proudly trained in South Carolina, I disagree with these statements and the ideas contained in the respective letters.

We, as Americans and South Carolinians, need good, decent lawyers to write and enforce laws, uphold our Constitution and apply the ideals of our founding fathers. To suggest that this leads to the "downfall of America" is hyperbolic and misleading. There are bad lawyers out there just as there are bad actors in any field of work, but disparaging the whole profession is not helpful and is untrue. Working in an independently owned, physician-run practice, I can tell you that simply conducting business in a normal, day-to-day manner would be unthinkable without lawyers.

Speaking as a physician, the role of the threat of malpractice in the cost of medicine is certainly real but is also one of many factors contributing to our current health care mess. Suggesting that "doctors pay $100,000 per year, and many times much, much more, for their malpractice insurance" (sic) is ludicrous and, again, misleading. Throwing out absurd numbers like this makes one question the rest of the claims in that letter. Additionally, caps on damages in states like Texas have not had the profound impact that many thought they would. This is a huge topic with many facets, but suggesting that a candidate is not fit for office based on this issue solely is, to me – a practicing physician – misguided and wrong.

Disagreeing with a candidate’s politics or policies is one thing, but disseminating misleading information about for what they and their profession stand for is not productive."

The National Consumer Voice for Quality Long Term care wrote a great article on why Americans should oppose tort reform.

"In the legal system, a tort is defined as a civil wrong against an individual or a violation of an individual’s rights for which some kind of compensation – or damages – may be obtained. In nursing home cases, the most common damages are noneconomic damages and punitive damages. Noneconomic damages are to compensate for pain and suffering, while punitive damages are designed to punish the person or entity that committed the wrong and stop further harm from occurring. Tort reform refers to efforts by state and federal legislatures to place limitations on the amount of damages that can be recovered by individuals in certain cases involving personal injury or the improper care or treatment of a patient by a health care provider. Tort reform would limit the amount of damages nursing home residents – who are among the most frequent and vulnerable victims of abuse and neglect in health care institutions – could receive. Several states have passed tort reform laws, and there are efforts to pass a national law to cap damages.

Tort reform would harm long-term care consumers by:Making long-term care facilities less accountable for harmful actionsGovernment studies have repeatedly shown that state inspection agencies fail to cite or penalize facilities for harming residents, even when they find serious injuries; moreover, many serious problems are never cited at all. Often the courts are the only branch of government that holds nursing homes accountable. By reducing damages, tort reform would lessen the degree of nursing home accountability. Less accountability could lead to more, not fewer, injuries.

Limiting consumer access to the civil justice systemMany residents who have been abused or neglected – or their families – do not file suit because they are unable to find attorneys willing to take their cases. Lawyers are increasingly unable to accept cases because the amount awarded for damages under tort reform will not offset the high cost of handling the lawsuit. As a result, residents or their families are left with no legal representation and are shut out of the civil justice system.

Limiting compensation for long-term care consumersNoneconomic damages are often the only compensation most nursing home and other long-term care facility residents receive. A recent study found that eighty percent of nursing home awards are for noneconomic damages for residents’ pain and suffering because most residents do not have earned income to replace. Noneconomic damages compensate residents for very real injuries–such as the loss of a limb due to a deep and infected pressure ulcer, the loss of mobility due to a preventable fall, or severe pain and permanent impairment. They also compensate for the loss of a spouse or parent. These are very real damages and should not be subject to arbitrary limitations.

Protecting corporations, not consumersDamages, particularly punitive damages, must be large enough to deter future poor care. Tort reform proposals protect the pocketbooks of health care providers, including multi-million dollar corporations operating nursing homes, by decreasing the amount of damages they are required to pay. If corporate behavior is to change, the size of the damages must get the attention of the corporate boardroom; otherwise, corporations simply see the amount as the “cost of doing business.”

Health Care REIT Inc (HCN.N) will buy Sunrise Senior Living Inc (SRZ.N) for about $845 million in an all-cash deal to bulk up its assisted living portfolio as baby boomers prepare to retire. Health care real estate investment trusts (REITs) have been targeting retirement villages as an aging U.S. population spurs demand for such communities that provide access to nursing facilities.

A real estate investment trust is used in many nursing homes and assisted living facilities to give the corporate owner profit without worrying about care rendered or Medicare reimbursement. In essence the REIT earns rent on leased properties and captures operating income from those facilities by retaining independent management for a fee. In other words they develop corporate shells who own the assets and the income but none of the liability. Although this is an excellent opportunity to maximize profits, it affects resident care if the ownership is too focused on profits and the real estate and investment.

The question always becomes if a corporation can afford billions of dollars why do they limit the staffing to those facilities. It is clear that certified aides provide the most direct care to residents and do so at minimum wage or just above, if companies can afford billions of dollars to purchase these investments they certainly can afford to staff the facility with more aides and pay them a better living wage.

At the very least, it is crucial to discard the canard that these industries are unable to make a profit when reasonable regulations are put into effect to ensure decent care for the seniors who rely on them.

MedCity News reported another problem with Kindred Healthcare: they commit too much negligence! Kindred Healthcare is threatening Kentucky that it will exit its nursing home business in Kentucky unless there is a change to Kentucky’s medical malpractice law, preferably giving Kindred immunity for the neglect and abuse they cause. Kentucky is one of a few states — including Arizona, Pennsylvania and Wyoming — in which the state constitution explicitly prohibits caps on medical malpractice damages.

“We made $6.5 billion in revenue last year, made $80 million in profits and paid $70 million in malpractice costs,” CEO Paul Diaz said. “When we mess up, we take responsibility and open the checkbook. But if we can’t provide the kind of care we want to provide, we will leave.”

The mainstream New England Journal of Medicine published a thorough article by physicians advocating comprehensive overhaul of our medical care system, and among other recommendations, advocating against arbitrary damage caps:

“More than 75% of physicians — and virtually all physicians in high-risk specialties — face a malpractice claim over the course of their career. Regardless of whether a claim results in liability, the risk of being sued may cause physicians to practice a type of defensive medicine that increases costs without improving the quality of care.Strategies to control costs associated with medical malpractice and defensive medicine must be responsible and targeted. These strategies must not impose arbitrary caps on damages for patients who are injured as a result of malpractice. According to the Congressional Budget Office, arbitrary caps on damages would reduce national health spending by only 0.5%. But although such caps would have a barely measurable effect on costs, they might adversely affect health outcomes.”

Someone recently reminded me of this incredible article from the great trial lawyer Gerry Spence. Gerry explains how powerful interests use propaganda to attack the judicial system and trial lawyers. It is worth the read for anyone concerned about safety.